The Courts and Conversion Therapy

Once upon a time, I tried lawsuits for a living. “Plaintiffs,” “defendants,” “negligence,” “foreseeability,” “standard of care,” and “reasonable man” were the jargon of the litigation attorney. Many of my cases fit the category of “professional liability,” aka malpractice. I served as attorney, on both sides, in professional liability cases against engineers, insurance agents, attorneys, chiropractors, and, especially, medical doctors. Here’s the medical negligence rule in Minnesota.

The prevailing professional standard of care for a given health care provider shall be that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.

Since the recognized medical, psychiatric, psychological, and counseling organizations have issued statements debunking conversion therapy (aka reparative therapy) as ineffectual and harmful, would it not be possible to sue practitioners for failing to provide “that level of care, skill and treatment … recognized as acceptable and appropriate?”

A different legal theory, consumer fraud, is behind a lawsuit recently filed against Jews Offering New Alternatives for Healing (JONAH) in New Jersey.

Four former JONAH clients, who were teens when they signed up for help, filed a consumer fraud lawsuit against JONAH and two of its counselors Tuesday, saying they were defrauded by JONAH’s claim that “being gay is a mental disorder” that could be reversed by conversion therapy — “a position rejected by the American Psychiatric Association four decades ago,” the lawsuit said.

California’s conversion-therapy ban … was one of the signature bills passed by the Legislature this year. The law prohibits minors from being subject to therapies aimed at changing their sexual orientation from gay to straight. Under the law, therapists who practice conversion therapy on minors risk loss of their licenses or other discipline by the state.

When California Governor Jerry Brown signed the bill into law, he stated, “these practices have no basis in science or medicine and they will now be relegated to the dustbin of quackery.”

Not so fast. Conversion therapists have immediately gone to court seeking to overturn the law. One judge has allowed the law to stand, but in a real head-scratcher, a second judge has issued a temporary injunction against the law on the basis that the free speech rights of the conversion therapists outweigh the potential of harm to minors subjected to the therapy. Really? You can’t make this stuff up.

It seems that Judge Shubb is a bit confused about the First Amendment. He appears to believe that it gives mental health providers license to say whatever they want, even if it is not in the best interest of clients. Such thinking makes a mockery of medicine … the judge seems blissfully unaware that the toxic words of a biased shrink can sometimes be as harmful as a scalpel in the wrong hands. The wounds of “ex-gay” survivors are real, devastating and can sometimes last a lifetime.

Shubb should fully understand that when he protects reparative therapists, he is wholeheartedly promoting and endorsing such outlandish quackery. It becomes particularly damaging when such demented “therapeutic” techniques are practiced on LGBT youth.

In another example of false equivalency in which all views are considered equal, even when repugnant, dangerous, and demonstrably false, the Anoka School District in Minnesota is back in the news. This is the largest school district in the state that garnered unfavorable national attention in the last couple of years due to a number of teen suicides following bullying. At issue was the district’s neutrality policy in which teachers and administrators were required to remain neutral when issues of human sexuality were discussed; critics claimed that this elevated the views of homophobic bullies to equal footing with tolerance and respect. Following a lawsuit, the district eliminated the policy and also set up an Anti-Bullying Task Force. A Minneapolis Star Tribune report today suggests there is further controversy on the Task Force.

Apparently, in another misguided notion of fairness, the school board believed the point of view of the bullies ought to be represented on the Task Force, and a known gay-basher was appointed. The School Board chair said the man was appointed because the Task Force should be “a diverse community.” Upside down diversity.

Now, a petition is circulating in the district seeking that person’s removal, claiming he “uses his personal faith as a weapon and represents the anti-LGBTQ bigotry that is STILL hurting kids in our district.”

“To imply that [he] lends balance is so disingenuous,” [a parent] said. “His position is very clear, and the effects of that rhetoric are painfully clear in this district. … This has nothing to do with balance. It has nothing to do with opposing views. It’s one thing to have opposing beliefs, but this is about opposing the existence of students.”